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Hemel and Posner on the President Being Subject to Generally Applicable Criminal Laws

The President Is Still Subject to Generally Applicable Criminal Laws: A Response to Barr and Goldsmith

Daniel Hemel
Eric Posner
January 8, 2019
Lawfare

In an op-ed in the New York Times and a post on Lawfare, we criticized President Trump’s nominee to be the next attorney general, William Barr, for a memo he sent to Trump administration officials last June arguing that Special Counsel Robert Mueller should not be allowed to “interrogate” the president about allegations of obstruction of justice. Jack Goldsmith has responded to our op-ed and blog post with a post of his own that offers a “qualified defense” of Barr’s memo. “Barr’s views, far from crazy, have significant support in Supreme Court case law and executive branch precedent,” Goldsmith writes.

We disagree. Taken at face value, Barr’s arguments would render the president immune from liability for a wide range of clearly criminal acts. The Supreme Court has not endorsed Barr’s views, and we expect that most readers will recoil at their implications. Goldsmith’s post is perhaps the best defense that can be mustered for Barr’s position on presidential immunity from obstruction liability, but we continue to believe that Barr’s stance is both radical and wrong.